U.S. v. Washington

• Citation: 380 F.3d 236
• Decision Date: 23 August 2004
• Docket Number: No. 03-3959.,03-3959.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Dennis WASHINGTON; and Ebony Brown, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

380 F.3d 236

UNITED STATES of America, Plaintiff-Appellant, v. Dennis WASHINGTON; and Ebony Brown, Defendants-Appellees.

No. 03-3959.

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2004.

Decided and Filed: August 23, 2004.

Appeal from the United States District Court for the Southern District of Ohio, Algenon L. Marbley, J.

COPYRIGHT MATERIAL OMITTED

Kevin W. Kelley (argued and briefed), U.S. Attorney's Office Southern District of Ohio, Columbus, OH, for Plaintiff-Appellant.

Lewis E. Williams, Jr. (argued and briefed), John Boyd Binning (briefed), Heather R. Zilka (briefed), Columbus, OH, for Defendants-Appellees.

Before: BOGGS, Chief Judge; MOORE, Circuit Judge; and QUIST, District Judge.^*

BOGGS, C.J., delivered the opinion of the court, in which QUIST, D. J., joined. MOORE, J. (pp. 244-51), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

The United States appeals the district court's granting of the defendants' motion to suppress evidence. The defendants, Dennis Washington and Ebony Brown, had been indicted on several counts after police officers executed a search warrant at 3112 Crossgate Road¹ and found narcotics and firearms. Although the officers had obtained a warrant, the defendants filed a motion to suppress arguing that the officer's affidavit, which was the sole basis of the warrant, was insufficient to establish probable cause. The district court agreed and granted the motion to suppress. The United States now appeals, arguing that probable cause did exist or, alternatively, that the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) should have been applied. Because we find that the good-faith exception should have been applied, we now reverse.

I

The case began when the Columbus (Ohio) Police Department's Narcotics Bureau planned an undercover "buy" of crack cocaine from an "unwitting," a person who does not know that he is dealing with the police. Detective Michael Johnson, working undercover, arranged a buy from an unwitting on October 1, 2002. Johnson met with the unwitting, who telephoned his narcotics supplier. Johnson and the unwitting then drove to a designated meeting place. Shortly thereafter, a black male driving a blue Cadillac parked next to Johnson's car.² The unwitting got out and entered the Cadillac. When the unwitting returned to Johnson's car, he produced a bag of crack cocaine. Johnson recorded the license plate of the Cadillac and later determined that it was registered to a woman named Ebony Brown at 3112 Crossgate Road, Columbus, Ohio. The police subsequently began conducting surveillance on that residence.

On October 5 (four days later), Johnson arranged for another buy with the same unwitting. The unwitting again called his supplier, and thereafter reported that the supplier said that he would be delayed because he was waiting on a ride to pick up his Cadillac in the repair shop. Shortly after this call, the police officers at 3112 Crossgate Road observed a Chevrolet Blazer pick up a black male (later identified as Washington) who emerged from that residence. The officers trailed the Blazer, which eventually dropped the man off at "Columbus Car Audio," where he picked up a blue Cadillac and drove it away. While the unidentified man was driving, the unwitting received a call from the supplier, who instructed him to go to a local Burger King. Detective Johnson and the unwitting then drove to Burger King to wait for the supplier. The blue Cadillac (which was being followed) pulled into the Burger King parking lot and the unwitting got out to meet with the driver. Johnson immediately recognized that this was both the same man and the same Cadillac involved in the first "buy" on October 1. After leaving the Cadillac, the unwitting came back and again produced crack cocaine. Johnson was unable to identify the driver of the blue Cadillac at that time, though he subsequently observed the blue Cadillac parked at 3112 Crossgate Road on both October 8 and October 9. As it turned out, the man driving the blue Cadillac was defendant Washington.

Based on these facts, Johnson sought a warrant to search the residence at 3112 Crossgate Road. The basis for the warrant was a four-page affidavit, in which Johnson relayed in narrative form the facts stated above. He added that, based on his experience, individuals involved with drug trafficking commonly keep records, documents, and money close by. In addition, Johnson noted that the Crossgate house had been robbed two months earlier, which was also (in his opinion) "indicative of suspects searching for narcotics and large sums of cash." A state magistrate judge approved the warrant, which was specifically limited to documents and records relating to drug trafficking, but did not authorize a search for drugs themselves.

The police conducted the search on October 11 (the warrant was issued on the 9th), and saw drugs in plain view after they entered the house. Based on these observations, the police obtained a second warrant to search for drugs and drug paraphernalia. Although it is not relevant for the issues in this case, the police found substantial amounts of crack cocaine, a firearm, and large amounts of money at the Crossgate residence.

The grand jury returned a four-count indictment against the defendants, charging them with violations of various drug and firearm-related offenses. Prior to trial, the defendants moved to suppress all evidence obtained in the search. They made four specific arguments as to why the evidence should be suppressed: (1) the warrant was invalid because the affidavit lacked evidence to establish probable cause, and the good-faith exception did not apply; (2) the police executing the search failed to knock and announce; (3) information in affidavit was too stale; and (4) the evidence from the second search was the "fruit of the poisonous tree."

The district court found that the affidavit was not sufficient to establish probable cause. Specifically, the court found that the evidence did not establish a sufficient nexus between the criminal activity and the residence itself. The court relied heavily on the fact that the police had not identified the suspect (who turned out to be Washington) and had not established where he lived prior to executing the search. Finding that the initial search was invalid, the court did not reach the other arguments, though it also suppressed the evidence of the second search as "tainted fruit." The United States appealed.³

II

The government contends that the district court erred by finding that the affidavit failed to establish probable cause. Alternatively, even if probable cause did not exist, the government argues that the good-faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) should have been applied. We consider each argument in turn.

A

"When reviewing decisions on motions to suppress, this court will uphold the factual findings of the district court unless clearly erroneous, while legal conclusions are reviewed de novo." United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir.1996). Because there was no hearing and no factual findings, the district court made only legal conclusions. "Where, as in this case, the district court is itself a reviewing court, we owe its conclusions no particular deference. In reviewing a state magistrate's determination of probable cause, this court pays great deference to a magistrate's findings, which should not be set aside unless arbitrarily exercised." United States v. Leake, 998 F.2d 1359, 1362-63 (6th Cir.1993) (internal citations and quotations omitted).

In determining if an affidavit establishes probable cause:

[T]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (emphasis added)). "To justify a search, the circumstances must indicate why evidence of illegal activity will be found in a particular place. There must, in other words, be a nexus between the place to be searched and the evidence sought." Ibid. (internal citations and quotations omitted). Thus, the critical question here is whether the facts alleged in the affidavit established a sufficient nexus between the criminal activity observed and the Crossgate residence.

Under the facts of this case, the existence of probable cause is an extremely close call. However, given our conclusion that the good-faith exception clearly applies, we will assume without deciding that probable cause did not exist.

B

As explained above, the police officers in this case obtained, and relied upon, a warrant issued by a state magistrate judge. Therefore, the government argues that Leon's good-faith exception should have been applied.

This court has explained that "[c]ourts should not ... suppress evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant." Carpenter, 360 F.3d at 595 (quoting United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Pursuant to Leon, this good-faith exception will not apply in four specific situations: (1) where the affidavit contains information the affiant knows or should have known to be false; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable [or] where the warrant application...